Legal Recognition of Same-Sex Relationships

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.

Briefing Paper No. 09/2006 by Karina Anthony and Talina Drabsch

The legal recognition of same-sex relationships in NSW and elsewhere in Australia has increased dramatically in the last 20 years to a point where most jurisdictions generally provide same-sex couples with the same rights and obligations as heterosexual de facto couples. However, the extent to which same-sex relationships are or should be recognised continues to elicit much debate.

Section two of this paper (pp 3-6) outlines the various relationship recognition models – those that operate on a presumptive basis as well as those that require couples to ‘opt-in’. The development of same-sex relationship recognition in NSW is described in section three (pp 7-16). Particular attention is paid to the widespread changes that occurred as a result of the Property (Relationships) Legislation Amendment Act 1999 which amended the definition of a de facto relationship so as to remove the requirement of partners being of the opposite sex. This section also considers various parenting issues such as who is considered to be a child’s parent, as well as matters relating to artificial donor insemination and adoption.

The Marriage Amendment Act 2004 (Cth) inserted a definition of marriage into the Marriage Act 1961 (Cth) so that marriage is ‘the union of a man and a woman to the exclusion of all others voluntarily entered into for life’. Section four (pp 17-29) discusses the development of the law on marriage in Australia, and provides the context in which the 2004 amendments occurred. This section also examines issues relating to children, including the availability of parenting orders and child support. Some of the relevant provisions of international treaties are also noted.

Section five (pp 30-40) outlines the various ways same-sex relationships are recognised in the Australian states and territories. Particular attention is paid to the recent developments in Tasmania and the ACT, in terms of the introduction of relationship registration and civil unions respectively. It also notes the different approaches to the law on adoption and assisted reproductive technology – with regard to access to such services and the status of children born as a result.

The Netherlands was the first country to introduce same-sex marriage, having done so in 2001. As well as the Netherlands, same-sex marriage is available in Belgium, Spain and Canada. Section six (pp 41-53) highlights the various ways same-sex relationships are recognised in Canada, Europe, New Zealand, the United Kingdom and the United States of America.

There are many areas of law in Australia in which same-sex relationships continue to be treated in a different manner to relationships involving a heterosexual couple. Some of the key issues that remain are noted in section seven (pp 54-56). Some of these areas are currently the subject of an inquiry by the Human Rights and Equal Opportunity Commission.

Some of the arguments for and against same-sex marriage are presented in section eight (pp 57-61). Similarly, the arguments for and against same-sex parenting and access to assisted reproductive technologies are highlighted.